The Travel Ban 2.0

Donald Trump’s revised Executive Order imposing a visa ban and reducing the U.S. refugee resettlement program can be found here.

I found this commentary by Amy Davidson (The New Yorker) particularly insightful.

The State of Hawaii has already filed a legal challenge to the new Order, alleging religious discrimination and violations of due process and asserting that the Order conflicts with federal statutory law.

The Order was (re)written in an attempt to withstand legal challenges. Thus, it includes paragraphs offering a security rationale for the (now) six countries it includes in the visa ban (Iraq is off the list); it exempts from the ban all persons with existing valid visas to enter the U.S. as well as green card holders, already approved refugees and other categories; it deletes the provision that gave special treatment for religious minorities seeking entry as refugees; and—to avoid a repeat of the havoc at airports—it doesn’t go into effect for 10 days.

These changes are strategic, not principled. They are included simply to overcome the earlier decisions that had put the first Order on hold. Indeed, the changes seem to undercut the stated security rationale for the Order as a whole: If the Administration argued that the first Executive Order was made effective immediately in order to prevent “bad guys” from sneaking in to the U.S., how does one explain the 10 day delay before the new Order takes effect? If the premise of the Order is that the current vetting system is inadequate to screen out terrorists, why are current visa holders (who got their visas under the flawed system) now exempt from the ban? Why are countries that are the home states to most of the persons who have committed terrorist acts not included in the ban?

The revised Order remains, for all the work the lawyers have done, a partial and inadequately justified instantiation of Mr. Trump’s campaign pledge to ban Muslims from the United States. (This is not to say that it will not withstand judicial scrutiny.)

And let me once again call attention to the dramatic and wholly unexplained cut in refugee admissions for fiscal year 2017, from 110,000 to 50,000.